England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 19th September 2001

Summary (This summary does not form part of the judgment)
1. In this judgment the Court of Appeal has given its reasons for making an order banning Mr Alexander from taking any steps whatever within the Royal Courts of Justice by way of acting or purporting to act on behalf of persons other than himself in legal proceedings except with the permission of a judge of the High Court or the Court of Appeal. The court also gave guidance about the activities of unqualified people who from time to time seek to help litigants in person in the courts. This "help" may take the form of acting as an advocate in court on their behalf or of conducting litigation on their behalf. The exercise of both these rights is now controlled by the Courts and Legal Services Act 1990.

Advocacy services and rights of audience

2. The existence or otherwise of a right of audience is now determined exclusively by Part II of the Courts and Legal Services Act 1990 ("the 1990 Act") and particularly by section 27. If the "helper" is not a barrister or a solicitor or a member of any other authorised body, and does not have rights granted by some statute, he may only have a right of audience in relation to any proceedings if "granted by that court in relation to those proceedings".
3. Lord Woolf, when Master of the Rolls, has said that the discretion to grant rights of audience to individuals who did not meet the stringent requirements of the Act should only be exercised in exceptional circumstances. He added that the courts should pause long before granting rights to individuals who made a practice of seeking to represent otherwise unrepresented litigants.

McKenzie friends

4. Although this case was not concerned with McKenzie friends, the court also set out three principles relating to McKenzie friends. The first is that a McKenzie friend has no right to act as such: the only right is that of the litigant to have reasonable assistance. The second is that a McKenzie friend is not entitled to address the court. If he does so, he becomes an advocate and requires the grant of a right of audience. The third is that as a general rule a litigant in person who wishes to have a McKenzie friend should be allowed to do so, unless the judge is satisfied that fairness and the interests of justice do not so require. However, the court can prevent a McKenzie friend from continuing to act in that capacity where the assistance he gives impedes the efficient administration of justice.

The right to conduct litigation

5. The question whether a person has a right to conduct litigation is also determined solely in accordance with Part II of the 1990 Act. The 'right to conduct litigation' means the right to issue proceedings before any court, and the right to perform any ancillary functions in relation to proceedings (such as filing acknowledgements of service). The right to conduct litigation may be granted having regard to the same considerations as the grant of the right of audience. A court has the power to grant an otherwise unqualified person a right to conduct litigation in relation to particular proceedings. It also has the power to remove that right if it is being abused. It is a criminal offence and also a contempt of the court concerned to do any act in the purported exercise of a right to conduct litigation when none has been conferred.

The Solicitors Act

6. The court also referred to section 20(1) of the Solicitors Act 1974. This section provides that "no unqualified person shall act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction". The section creates a criminal offence and also a contempt of the court in which the relevant action is brought. There is no breach and no contempt if the acts in question are carried out pursuant to a right of audience or a right to conduct litigation granted under the 1990 Act. In its judgment the court explains how the words "acts as a solicitor" have been interpreted in the past.

Publicity for these principles

7. The Court expressed the wish that steps might be taken to bring these principles to the attention of everyone who exercises judicial office in the Royal Courts of Justice and every relevant member of court staff. It said that court staff should be particularly vigilant to ensure that formal documents, such as an appellant's notice, should be signed either by the appellant himself or by someone, such as a solicitor, who has the legal right to conduct litigation on the appellant's behalf. The court also expressed the hope that the appropriate authorities in the Supreme Court Group and the Civil Appeal Office might set up administrative systems to assist judges to identify those lay representatives who are not simply helping a friend or relation but are holding themselves out to act for others on a regular basis.

LORD JUSTICE BROOKE : This is the judgment of the court.

8. In this matter another division of this court (Robert Walker and Tuckey LJJ) on 4th July 2001 dismissed three applications by Mr Noueiri. At the end of his judgment Robert Walker LJ, with whom Tuckey LJ agreed, made certain comments about the position of Mr Anthony Alexander in the litigation. The court had permitted Mr Alexander to address it in the capacity of Mr Noueiri's lay representative, and in his judgment Robert Walker LJ explained why there seemed to him to be grave doubt as to whether Mr Alexander was a proper person to be allowed to act as a Mackenzie friend or a lay representative on behalf of any other litigant in person.
9. He recognised that Mr Alexander was entitled to prepare such submissions as he might wish to make to the court before any order was made against him. He therefore adjourned the question whether some order should be made, and if so in what terms. He told Mr Alexander that he must understand that this was a matter of concern not only to that constitution of the court but to the Civil Appeals Office generally. He suggested that the Attorney-General might be asked to instruct counsel to assist the court, and we have benefited from the submissions made to us by Mr Jeremy Morgan in that capacity. We also heard submissions from counsel who appeared for the RCJ Advice Bureau. Mr Alexander appeared in person.
10. The court's order on 4th July 2001 was formally drawn up in these terms, so far as is material:

"… that there be a hearing on the [26th July] 2001 to which Mr Anthony Alexander is directed to attend where the constitution will consider the question as to what order should be made in order to restrict Mr Anthony Alexander's activities in completing application forms on behalf of litigants, preparing papers for litigants and representing litigants in court."

11. The anxieties expressed by the court on 4th July 2001 came to the attention of the Director of the RCJ Advice Bureau, Joy Julien, who swore an affidavit to which she exhibited a number of documents. She has been the director of the bureau for nearly four years, and this is the first time she has ever taken a step of this kind. She rationalised the bureau's intervention by saying that the aims and principles of the Citizens' Advice Bureau service required the bureau "to exercise a responsible influence on the development of social policies and services both locally and nationally". In the light of what she said in her affidavit the bureau sought permission to intervene in these proceedings.
12. Mr Alexander made a witness statement in response. He took issue with much of what Ms Julien said in her affidavit and sought permission to cross-examine her. In the event, Mr Engleman, who appeared for the bureau at the hearing, decided to rely only on Ms Julien's evidence about Mr Noueiri and a client of the bureau called Mr Mensah, and Mr Alexander cross-examined her on those parts of her affidavit. He said he did not wish to cross-examine Mr Mercouris, the Bureau adviser who had seen Mr Mensah in February 2001 and made a contemporaneous record of that interview (which was exhibited to Ms Julien's affidavit), although Mr Mercouris was available in court to be cross-examined.
13. On 23rd July 2001 the RCJ Advice Bureau made a formal application to the court that it might be joined in this matter. It sought an order curtailing and/or limiting Mr Alexander's ability to solicit, advise or otherwise act as a Mackenzie friend to litigants or potential litigants within the precincts of the Royal Courts of Justice. We granted this application at the start of the hearing.
14. Three applications had been listed before the court on 4th July. In addition to seeking a review of an order made by Keene LJ as a single judge of the Court of Appeal on a proposed appeal from an order of the High Court, Mr Noueiri, for whom Mr Alexander acted as a lay representative, also sought permission to appeal from an order made by Mr Recorder Rayner James in the Willesden County Court. This court is a creature of statute, and Section 15(3)(a) of the Supreme Court Act 1981 provides that for all purposes of or incidental to the civil division of the Court of Appeal, the Court of Appeal shall have all the authority and jurisdiction from the court or tribunal from which an appeal is brought (see also CPR 52.10(1) for the powers of appeal courts generally).
15. In the event, our concerns were limited to Mr Alexander's activities in the Royal Courts of Justice, so that we do not have to consider any question relating to our jurisdiction in a matter like this to control Mr Alexander's activities in county courts other than the county court from which the appeal was brought.
16. Both Mr Engleman and Mr Morgan drew our attention to the helpful summary on page 1761 of Volume 2 of the 2001 edition of the White Book of the powers possessed by a superior court of record to protect its process from abuse. It is necessary only to refer, without express citation, to Connelly v Director of Public Prosecutions [1964] AC 1254, 1301; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, 971; and, for the Court of Appeal's jurisdiction to protect its own process from abuse, Burgess v Stafford Hotel Ltd [1990] 1 WLR 1215, 1219-20. In our judgment, this court has ample power on this occasion to make orders restricting Mr Alexander's activities in the Royal Courts of Justice, both as to the business of the Court of Appeal and as to the business of the High Court, if it is satisfied that they amount to an interference with the proper processes of the administration of justice. Mr Alexander, who has considerable legal knowledge, did not argue to the contrary.
17. The extent of the court's inherent jurisdiction was considered recently in Ebert v Venvil [2001] Ch 484, a case in which this court considered whether its inherent jurisdiction to restrain the commencement of further proceedings was ousted by the statutory provisions in relation to vexatious litigants. The court held that:

(i) The nature of the inherent jurisdiction of any court to prevent its own procedure being abused was "extensive"; it was not closed; it could restrain "anticipated" but unidentified proceedings;

(ii) The use of its inherent jurisdiction to restrict litigation was not in conflict with Article 6 of the European Convention for the Protection of Human Rights. (See per Lord Woolf MR, pp 496-497). For ECHR jurisprudence on a court's right to protect its own process, see Golder v United Kingdom [1975] 1 EHRR 524 and H v United Kingdom (Appln No 11559/85; 45 TR 281), a case in which the Commission held that it was permissible to restrict the right of access to a court of a person who had previously abused that right.

18. We will turn therefore to the facts with which the court is concerned. Mr Alexander described himself and his history in an application he made for a post as a CAB worker at the RCJ Advice Bureau in January 1999. He was then 52 years old, and lived in London. He said he had qualified as an advocate in California and had frequently appeared in court on his own behalf and on behalf of others as a "Mackenzie friend". The bureau did not in fact employ him. He was made bankrupt in February 2000.
19. In his affidavit he described how he helped litigants who "were obvious victims of society who seemed in genuine need and had no other recourse but to turn to someone of goodwill to assist them." We had the opportunity of observing Mr Alexander when he addressed us for over an hour at the hearing. He has immense self-confidence as an advocate. The extent to which he gives appropriate assistance to those he sets out to assist, or assists the court in its task of administering justice, was the issue we had to determine.
20. This hearing was arranged as a result of the concerns expressed by the court in the present case. The facts of the case were fairly straightforward. Mr Noueiri had been granted a mortgage loan of about £90,000 by the respondent company in 1989. He failed to keep up his mortgage payments, and in both 1990 and 1992 possession orders were made against him in the Willesden County Court. A warrant for possession was issued on 7th September 2000. On 26th September District Judge Steel gave directions leading up to a hearing of an application to set aside the warrant, which was due to be executed on 28th September. On 24th November 2000 District Judge Dabezies refused to set aside the possession order and the warrant for possession, and directed that Mr Noueiri should make no further application in the matter without the permission of the court unless his application was accompanied by a payment into court of £30,000.
21. On 5th January 2001 Judge Krikler dismissed Mr Noueiri's appeal against this order. Any competent litigator advising Mr Noueiri would then have realised that any further appeal could only lie to this court, and because it would be a second appeal, permission to appeal could only be given by this court. Such permission would not be granted unless the court considered that the appeal would raise an important point of principle or practice, or there was some other compelling reason for this court to hear it (CPR 52.13).
22. Although he did not appear before Judge Krikler on 5th January, Mr Alexander was advising and/or acting for Mr Noueiri, and on his advice Mr Noueiri sought permission to appeal to the High Court. On 9th January Ouseley J was persuaded to make an order staying the warrant, which was now due to be executed on 10th January 2001, pending the hearing of an appeal in the High Court on 15th January. On 15th January Hallett J correctly struck out this notice of appeal as the High Court had no jurisdiction in the matter. On 18th January Mr Alexander persuaded Judge Krikler to suspend the warrant for 48 hours to enable a notice of appeal to be lodged in this court.
23. On 24th April 2001 Keene LJ, sitting in court, refused permission to appeal to the Court of Appeal, not only because he considered that neither of the criteria for second appeals which are set out in CPR 52.13 was satisfied, but also, on the lower threshold test used for first appeals (CPR 52.3(6)), because he did not consider that an appeal would have a real prospect of success. The RCJ Advice Bureau had helped Mr Noueiri to prepare the bundle of documents for this hearing, but in all other respects Mr Alexander was handling the matter on his behalf.
24. Any competent litigator would have advised Mr Noueiri that this was the end of the road. Even before the reforms introduced by CPR Part 52, section 54(6) of the Supreme Court Act 1981 provided that no appeal lay to the full court of the Court of Appeal from the decision of a single judge on an application for permission to appeal. Since those reforms were introduced, a constitution of the Court of Appeal may consist of a single judge for the purpose of exercising any of its jurisdiction (Supreme Court Act 1981 s 54(2), as substituted by section 59 of the Access to Justice Act 1999). CPR 52.16(6)(a) expressly provides in this context that at the request of a party, a hearing will be held to reconsider the decision of a single judge, but only if it was made without a hearing. These matters are now fully set out in the judgment of Robert Walker LJ in this case on 4^th July (see [2001] EWCA 1114 at [12] – [17]). We would add that for over 100 years no appeal has lain to the House of Lords against a decision of this court refusing permission to appeal (Lane v Esdaile [1891] AC 10). Mr Alexander was very familiar with this principle.
25. Mr Alexander nevertheless persisted on Mr Noueiri's behalf. On 14th May he lodged an application at the Civil Appeals Office seeking an extension of time, permission to appeal and a stay of execution in relation to Hallett J's order of 15th January On 1st June the county court bailiff gave Mr Noueiri notice that he must vacate the premises before 8am on 29th June. On 20th June Keene LJ, again sitting in court, struck out the 14th May application pursuant to his powers under CPR 52.9. He said it was a futile application which had no prospect of success whatsoever. Mr Alexander appears then to have believed, quite wrongly, that there was still a right under the new rules to refer this decision by a single lord justice to the full court. He therefore caused an application to this effect to be filed at the Civil Appeals Office, and on 25th June he persuaded Mr Recorder Rayner James, sitting at Willesden County Court, to order a stay on the execution of the warrant of possession for two days on an application made without notice. Two days later, after hearing the respondents, the same recorder declined to continue the stay and directed that the mortgagee claimants be permitted to add to their security costs he summarily assessed at £1,500.
26. We have seen a copy of the recorder's judgment on 27th June. He said, correctly, that Mr Noueiri's pending application to overturn Keene LJ's order "has no prospect according to the rules as the hearing of [20] June was an oral one". He said that although the court would consider a stay of the warrant if it was satisfied that there was some prospect of success with regard to the appeal, the prospect of success for Mr Noueiri was "entirely negligible".
27. This did not deter Mr Alexander, and on 4th July this court heard an application for permission to appeal against Keene LJ's order of 20th June, an application for a stay of execution pending the hearing of the appeal, and an application for permission to appeal against the recorder's order refusing to extend the stay he had granted.
28. We have seen the three notices which initiated these applications. They were all completed by Mr Alexander himself in manuscript. Section 2 of Form N161 (Appellant's Notice) contains space for "Your solicitor's name … (if you are legally represented)" and "your solicitor's address". On one of the forms Mr Alexander crossed out the word "solicitor" and substituted the word "representative". On the other he did the same, except that on one occasion he styled himself "legal representative". He gave a Hammersmith address from which he conducted business of this kind as "Your representative's address". On Form N244 (Application Notice) he again styled himself "legal representative".
29. In Section 4 of Form N161 ("Who will represent you at the appeal hearing?"), where there were tick boxes for "Yourself", "Solicitor" and "Counsel", Mr Alexander deleted the word "Yourself" on the first form and substituted "legal representative". He did not make any entries in Section 4 of the other form. In Section 6B Mr Alexander ticked both boxes, so that they read, confusingly, "I do not need permission [to appeal]. I, Anthony Alexander, appellant's representative, seek permission to appeal the order(s) at Section 5 above". Section 8 ("Arguments in support of grounds") contained a list of judgments in cases in which Mr Alexander had been personally involved, the "Ambatielos Arbitration" (see para 41 below) and some general references to principles of English law or articles of international conventions. In so far as reasons were given for the applications, they were phrased in vague terms, such as that the "judgment was unfair, inequitable, wrong in law and unjust."
30. Mr Alexander signed the statements of truth which followed a list of "other applications" in Section 10 of the two Forms N161 on behalf of his firm Peaceful Warrior Ltd. On both these forms he said that this company was incorporated in 1984. On one of them he added the words "Anthony Alexander Ltd", which is a company name he has used in recent correspondence. On one form he described the "position or office" he held in the company as "in propria persona" and on the other "Advocate (pro bono)".
31. The application on Form N244 for a stay of execution, on which the Statement of Truth was completed by Mr Alexander as legal representative, contained the following statement:

"We wish to utilise the full remedy process, such being the full and complete exhaustion of all and any available local remedies, in the courts of the United Kingdom of Great Britain and Northern Ireland, in accordance with European law, pursuant to the Ambatielos principle, pending a hearing."

32. In his judgment Robert Walker LJ gave reasons for dismissing all these applications. He said (at para 17):

"It appears to me that all three applications before us, together with their ancillary applications, were attempts to prolong litigation which effectively came to an end on 24th April last when Keene LJ refused permission to appeal from His Honour Judge Krikler."

33. Robert Walker LJ then made his comments about Mr Alexander to which we referred earlier in this judgment (see paras 1 and 2 above). He made five points in this context:

i) Mr Alexander had in the past been an experienced litigant in person, and on 15th May 2000 another division of the court had made a Grepe v Loam order against him (see Grepe v Loam [1887] 37 Ch D 168);

ii) He was also an undischarged bankrupt: he had told the court he was seeking to set aside a bankruptcy order made on 24th February 2000;

iii) In spite of these matters, he had sought permission, and had so far on a number of occasions obtained permission, to act as a lay representative for other litigants in person;

iv) On 1st December 2000, in a case called Mensah v Islington London Borough Council, to which we will refer in paragraphs 29-31 below, Peter Gibson LJ had said that the court should be very slow to permit Mackenzie friends to act as advocates. Mr Alexander was appearing for Mr Mensah on that occasion;

v) Since that warning, and the subsequent Grepe v Loam order, Mr Alexander made the misconceived and hopeless applications which had been before the court that day.

34. It was in those circumstances that Robert Walker LJ said that it appeared to him that there was a grave doubt as to whether Mr Alexander was a proper person to be allowed to act as a Mackenzie friend or lay representative on behalf of any other litigant in person.
35. In connection with the Grepe v Loam order made against him, Mr Alexander showed us the judgment of Judge LJ in Anthony Alexander v Phillips Electronics Ltd [2000] EWCA CIV 893, the case in which the order was made. Although we are not concerned with his activities as a litigant on his own account - and Mr Morgan, who had been nominated by the Attorney-General to act as a friend of the court, made it clear to us that he was making no submissions in the context of that part of Mr Alexander's court activities - it is instructive to note the following passages in Judge LJ's judgment:

"None of the applications for permission to appeal has any merit, and indeed they have become increasingly unreal. The descent into fantasy was illustrated by the application [to Owen J in February 2001] that the [defendants'] skeleton should omit the word 'energetic'. Each of the orders currently under consideration was fully justified. The narrative of events provides a successful explanation for the orders, and why there is no realistic prospect of a successful appeal against them…

The courts from the master to the House of Lords have been inundated with a series of applications by Mr Alexander which have ultimately proved to be ill-founded. Time and again the exercise has been pointless and wasteful of limited court resources and from time to time has involved the defendants in additional expense. Having seen Mr Alexander on a number of occasions personally, I should record that although he has always treated the court with proper courtesy there is no doubt that the prospect of forensic battle holds no terrors or concerns for him, and that indeed he relishes the cut and thrust of the forensic process."

36. We will now refer to the judgments given by Arden and Peter Gibson LJJ in the Mensah case. Mr Mensah, who was born in 1965, commenced proceedings against two local authorities in September 1999 claiming damages for their negligence many years previously when he was a child in their care. He asserted that his present unstable psychological condition stemmed from inadequate care in his childhood. Both defendants relied on a limitation defence which was upheld by Judge Kennedy QC in the Lewes County Court on an appeal from District Judge Fawcett. Mr Mensah applied for permission to make a second appeal.
37. At the start of her judgment in Mensah v Islington Council [CAT 1st December 2000] Arden LJ recorded how Mr Mensah had felt unable to make submissions to the court, and the court had therefore allowed Mr Alexander, his Mackenzie friend, to make submissions on her behalf. She continued (at para 3):

"In addition we rose for some one hour twenty minutes to enable Mr Alexander to prepare his submissions. In giving that permission, which was quite exceptional, speaking for myself, I was desirous of ensuring, so far as I could, that every possible point was put forward on behalf of Mr Mensah in his claim. I regret to say, however, to have experienced a little disappointment in that matter as it appeared that when the court resumed Mr Alexander was not fully familiar with this case."

38. In his supporting judgment, Peter Gibson LJ said (at paras 54-58):

"I add a few words on the unusual way that the hearing of this application for permission has proceeded.

Mr Mensah commenced proceedings in person and earned the commendatory remarks from His Honour Judge Kennedy QC which Arden LJ has already cited from Mr Mensah's appearances before that judge. Before us Mr Mensah appeared with a Mackenzie friend, Mr Alexander. Mr Alexander had applied some time ago to this court to be allowed to address the court on behalf of Mr Mensah. That was refused as Mr Alexander had no right of audience. When Mr Mensah was given the opportunity to address us today, it soon became apparent that he was not in a position to present his case himself and that despite this court's refusal to allow Mr Alexander to speak for Mr Mensah, Mr Mensah was relying on Mr Alexander to do just that. He asked that Mr Alexander should be allowed to make submissions. We were anxious that Mr Mensah should have a proper opportunity of dealing with the points taken against him by the defendants. In accordance with the overriding objective of the CPR and to avoid the waste of today's hearing, attended, as this court had earlier directed, by counsel for the defendants, we took the exceptional course in this highly unsatisfactory situation of allowing Mr Alexander to speak for Mr Mensah.

But I must make it clear that this should not be taken as creating any precedent as to how those who have no right of audience can act as advocates for litigants in person. Anyone who aspires to be an advocate should obtain the requisite qualifications, and the court should be very slow to permit those who are allowed to be present in court as Mackenzie friends to act as advocates. That is not the proper function of a Mackenzie friend. The position in law was recently restated by this court in R v Bow County Court ex parte Pelling [1999] 1 WLR 1807. I repeat and endorse the warning given by Lord Woolf MR at page 1825 that if a person chooses to appear regularly as a Mackenzie friend and uses the litigant as a mere puppet, such behaviour could provide a firm foundation for a judge not wishing him to be present as a Mackenzie friend.

Mr Alexander's first request to us was to ask for an adjournment to enable an application for legal aid to be made. But he told us that Mr Mensah had tried unsuccessfully to obtain legal aid on four previous occasions, and there is no reason to think that he would be more successful on a fifth attempt. Mr Alexander then asked for an adjournment on the basis that he had not had a proper opportunity to consider the papers and because the skeleton argument of one of the defendants arrived only last night and that of the other defendant only this morning. So far as he was requesting an adjournment to read the papers other than the skeleton, Mr Alexander has known for some time that he could appear as a Mackenzie adviser and he has had ample opportunity, in my view, to familiarise himself with the documents which Mr Mensah chose to put before this court. So far as he was requesting an adjournment to read the skeletons provided rather late by the defendants, it was plainly right that he should have that opportunity. We therefore adjourned the hearing for more than an hour to enable him to read those brief skeletons and to consider them.

Mr Alexander did not begin to grapple with the difficulties provided by the documents referred to by my Lady, nor with the conditions posed by the Limitation Act. Having heard what he has had to say, I too am in no doubt, for the reasons given by my Lady, that the appeal has no prospect of success. Indeed, I would go further. This is an attempt to appeal in a case where there has already been one unsuccessful appeal to a court. Mr Mensah would have had to show that a point of principle of practice was raised or that the case was one which for some other compelling reason should be considered by this court: see paragraph 2.19 of the Practice Direction for the Court of Appeal (Civil Division). That test, in my judgment, was plainly not satisfied."

39. Ms Julien explained in her affidavit how Mr Mensah had visited the RCJ Advice Bureau in August 2000, and obtained their help in preparing the bundle of documents required by the Civil Appeals Office. In October he returned to the bureau and told the staff that a "pro bono barrister" was now acting for him on the hearing of his application that day.
40. He came back to the bureau on 21st February 2001. He said that his application had in fact been heard "on notice", following an adjournment, on 1st December 2000. It had been dismissed. Mr Mensah was now seeking the bureau's help with two matters. He wanted them to help him complete papers for a judicial review of the decision of the Court of Appeal, and he also wanted to discuss an intended appeal to the House of Lords. He said that his "pro bono advocate", Mr Alexander, had advised him to take both these steps.
41. Mr Mercouris was the member of the bureau's staff who saw him. He read the transcript of the Court of Appeal's judgment which Mr Mensah had brought with him. He heard that Mr Mensah had lost all confidence in Mr Alexander as a result of what he saw and heard in court that day. He said he felt Mr Alexander had mishandled his case disastrously, and during the course of the interview he called Mr Alexander a charlatan.
42. Mr Mensah told Mr Mercouris a number of matters about his dealings with Mr Alexander. He had told Mr Mensah he would win £250,000. Although he purported to be a "pro bono" advocate, he had said that he would expect to be paid 20% of Mr Mensah's winnings, and specifically mentioned the sum of £50,000. He used a variety of postal addresses, and Mr Mensah was not precisely sure where he lived or where his offices were. He had treated Mr Mensah condescendingly and patronisingly, and since the hearing he had refused to return his papers. During their most recent telephone conversations, Mr Alexander had repeatedly sworn at him. (The bureau subsequently retrieved Mr Mensah's papers, with some difficulty).
43. Although Mr Alexander had made numerous promises that he would prepare his case, it was obvious to Mr Mensah at the hearing that he had done nothing at all and was completely unprepared. Mr Mensah felt he had been manipulated by Mr Alexander, and he was frightened of him.
44. Mr Mensah returned to the bureau a week later. He said then that he had been first introduced to Mr Alexander by someone he met on a bus when travelling to the Court of Appeal for the first hearing of his application. He said that this other person was also consulting Mr Alexander about his case. He added that Mr Alexander knew that he had mental health needs connected with his depressive illness, and that he had told him that some people who had lost their cases in the Court of Appeal ended up being sectioned under the Mental Health Acts.
45. During Mr Mensah's visits Mr Mercouris advised him that the advice Mr Alexander was giving him was completely wrong. Any applications, either to the High Court for judicial review, or to the House of Lords for permission to appeal, were bound to fail because there existed no power to entertain either of them.
46. Ms Julien also showed us the correspondence which followed Mr Mensah's visits to the bureau, and some letters or copy letters which Mr Mensah had received in connection with this matter. These included a letter from the Brighton and Hove branch of "Mind" which contained the following passage:

"Just thought I'd drop you a line to pass on a call from Anthony Alexander that I received after you'd gone this morning.

Anthony's understanding of your situation (this might be right or wrong) is that in order to take your case to Europe you have to have gone through every possible legal procedure in the UK first. This includes the House of Lords. To get to Europe you therefore have to apply to the House of Lords even though they will certainly turn down your application – it's procedure you have to go through. Unfortunately an application costs £570.

Anthony suggests that one way out of this is for him to write to the Court of Appeal and ask them to waive the application fee for the House of Lords. They will probably say no, quoting the Lane v Esdaile case but he feels it is worth trying. He is going to do this."

47. The correspondence shows that Mr Alexander was styling himself as "Advocate (pro bono)". He added the words "legal qualifications and credits available upon request" in one of his letters. Mr Mensah's file included the copy of a letter written by Mr Alexander to the Civil Appeals Office Listing Office on 12th November 2000 seeking the court's consent to his suggestion that he should speak on Mr Mensah's behalf as his lay representative on 1st December. (As appears from Peter Gibson LJ's judgment, this request was refused). It also included a letter sent by Mr Alexander to Peter Gibson LJ personally on the evening of 1st December to the effect that he had been ritually humiliated and that he would be making a formal complaint about the "treatment meted out".
48. It appears that Mr Alexander has totally misunderstood the effect of the rule that the ECHR institutions at Strasbourg will not entertain a complaint unless an application has exhausted his remedies in his national courts. He believes, quite wrongly, that after the Court of Appeal has refused permission to appeal, there must still be a petition for leave to appeal to the House of Lords even though such a petition is doomed to failure. He addressed us at some length about his belief in this regard, as he had to other courts in the past. In one of those hearings reference was made to a judgment of Hill J in the Admiralty Court in The Ambatielos [1923] P 68, and Mr Alexander also made reference to other cases which he did not produce. So far as the European Court of Human Rights is concerned, its judgment in De Wilde, Ooms and Versyp v Belgium (No 1) 1 EHRR 373 shows (at para 60) that under international law, the rule of exhaustion of domestic remedies demands the use only of such remedies as were available to the applicants and capable of providing redress for their complaints; and that the onus lies on a national government to indicate the remedies which were available to them and which ought to have been used by them until they had been exhausted. We do not suppose anyone will ever be able to persuade Mr Alexander that his understanding of the position is wrong. On 28th February 2001, the day of Mr Mensah's second visit, Ms Julien wrote to a deputy master at the Civil Appeals Office in these terms:

"Mr Alexander continues to advise Mr Mensah (who is on benefit) to put up £570 in cash to pursue an appeal to the House of Lords. This notwithstanding the fact that Mr Alexander has demonstrated that he is aware of Lane v Esdaile."

49. Ms Julien expressed to us a number of concerns about this history. After directing us to Peter Gibson LJ's comments on the poor quality of Mr Alexander's advocacy, she said that if Mr Alexander had not become involved the bureau would probably have been able to find a pro bono advocate who would have been a qualified barrister. He would have been able to put Mr Mensah's case cogently and effectively. Although Mr Mensah would still have lost, his case would have been properly put. This would not only have helped the Court of Appeal, but it would also have ensured that Mr Mensah would have come away from the hearing convinced that his case had been argued properly. She added that "this would have been very important to him and is not the case at present".
50. She also pointed out that the Court of Appeal had ordered Mr Mensah to pay the costs of the hearing, even though he was on benefit. Although it seemed unlikely that the respondent local authorities (who were both represented by solicitors and counsel), would seek to recover their costs, she believed that this order might have been avoided if Mr Mensah had been properly represented. Similarly, she thought that if Mr Noueiri had entrusted his case to the bureau, instead of just using it to help him to prepare a bundle of documents, her staff would have been able to explore with him the possible housing options that might have been available to him after his application to the Court of Appeal was turned down.
51. Mr Morgan, to whom the court was indebted for his help, suggested that on the evidence the court might in the light of the inquiry directed by its order of 4th July (see para 3 above) consider Mr Alexander's conduct under five separate headings:

i) The fact that he gave bad advice to those he sought to assist. This led to a waste of court time and exposed them to the risk of adverse costs orders. It also meant that other litigants had to wait longer for their cases to he heard;

ii) The fact that he gave this assistance to people who were already vulnerable. (This was a matter of particular concern to the RCJ Advice Bureau);

iii) The fact that he told Mr Mensah that he expected to receive 20% of his winnings as recompense for his pro bono services;

iv) The fact that he held himself out wrongly as a lay representative competent to assist litigants in their cases;

v) The fact that although he was eloquent and articulate as an unqualified advocate, he was also an incompetent advocate, as the judgments of this court in the Mensah case showed.

52. In addition to the evidence given in his affidavit, Mr Alexander's oral submissions to us contained a significant amount of evidence, although we did not require him to go into the witness box for this purpose. He showed us transcripts of judgments in which members of this court, or judges in other courts, had complimented him on his advocacy or on the assistance he had given them. He apparently has an undesirable practice of writing personal letters to judges after hearings in which he has appeared as a litigant in person or as a "pro bono advocate" or lay representative, and he showed us some of the polite responses he had received.
53. He said that Mr Noueiri, who was present at the back of the court, was a friend of long standing, whom he had helped from time to time. He showed us papers relating to a judgment in Mr Noueiri's matrimonial proceedings eight years ago. He said that Mr Noueiri had never been a client of the RCJ Advice Bureau. He did not respond to Ms Julien's statement that the bureau would have been able to advise Mr Noueiri on his housing options if he had not entrusted himself to Mr Alexander. He said he would be willing to undertake to pay the £1,500 Mr Noueiri was ordered to pay by way of costs on 27th June.
54. He accepted that Mr Mensah was vulnerable, and he did not challenge the bureau's account of what Mr Mensah had told them. He suggested, however, that Mr Mensah would "most assuredly listen to the last word which represents the most strength and security". He said that Mr Mensah had made derogatory remarks about the judges after the hearing on 1st December (which he had quoted in his personal letter to Peter Gibson LJ), and had continued to seek his advice after that hearing.
55. He accepted that it had been a serious error of judgment on his part to go to the High Court in January 2001 in the Noueiri case, but this had helped his friend stay in his flat for a little longer. He told us he possessed a book on Legal Skills, and that he called himself an advocate although he was not qualified to practise here. He said that he had a good understanding of natural law, and that he simply helped friends: Mr Mensah was the only "client" who was not a friend.
56. When we asked him why he felt he was permitted to complete and lodge Notices of Appeal or Application Notices at the Civil Appeals Office he said that he was entitled to file them as an advocate. He said that he had never taken any money from anyone and he denied saying some of the things attributed to him by Mr Mensah.
57. In this matter we are not directly concerned with the activities of a Mackenzie friend or with Mr Alexander's status as a litigant in his own right. We are concerned with his activities when he acts or purports to act as if he was a lawyer on behalf of other litigants. This may take the form of his acting as an advocate in court on their behalf or of conducting litigation on their behalf. The exercise of these rights is now controlled by statute. Section 119(1) of the Courts and Legal Services Act 1990 contains the following definitions:

"'right of audience' means the right to appear before and address a court including the right to call and examine witnesses;

'right to conduct litigation' means the right

(a) To issue proceedings before any court; and

(b) To perform any ancillary functions in relation to proceedings (such as entering appearances to actions)."

58. Because there is still a good deal of misunderstanding about the scope of the activities unqualified people are now permitted to pursue in our courts when they are not concerned with litigation in their own right, it is necessary to state the basic ground rules as simply as possible.

Advocacy services and rights of audience

59. At common law nobody had a right to act as an advocate without the leave of the court which, as part of its power to regulate its own proceedings, had a discretion to control who addressed it. Nevertheless by ancient usage in the superior courts barristers and others similarly qualified could not be prevented from acting as advocates (see the extracts from the judgments in Collier v Hicks (1831) 2 B & Ad 663 at pp 668 and 672 cited by Lord Pearson in O'Toole v Scott [1965] AC 939, 952C-F).
60. The existence or otherwise of a right of audience is now determined exclusively by Part II of the Courts and Legal Services Act 1990 ("the 1990 Act") and particularly by section 27. None of the general rights of audience granted by section 27(2)(a) and (b) apply to Mr Alexander. He was not a duly qualified barrister or solicitor, and none of these proceedings were covered by the Lay Representatives (Rights of Audience) Order 1999, which is concerned with small claims proceedings. In those circumstances he may only have a right of audience in relation to any proceedings if "granted by that court in relation to those proceedings" (see section 27(2)(c)). Section 27(2)(a) evidences the importance Parliament attached to the control exercised by appropriate authorised bodies (an expression, defined in section 27(9), which includes the Bar Council and the Law Society) which has qualifications and rules of conduct that have been approved for the purposes of section 27.
61. The decision whether to grant a right of audience in an individual case has to be made by reference to sections 17 and 18 of the 1990 Act: see D v S (rights of audience) [1997] 1 FLR 724, 725B-726G. In that case Lord Woolf MR said at pp 728C-729A that the discretion to grant rights of audience to individuals who did not meet the stringent requirements of the Act should only be exercised in exceptional circumstances. He added that the courts should pause long before granting rights to individuals who made a practice of seeking to represent otherwise unrepresented litigants.
62. Section 27(4) of the 1990 Act confers on the court in any proceedings a power to refuse to hear a person with a right of audience (for reasons which apply to him as an individual). This power cannot extend to individuals with no right of audience. It does not have to, since they have no right until it is expressly conferred on them by the Act or by the court. For the sake of completeness, we would add that it is a criminal offence, and also a contempt of the court concerned, to do any act in the purported exercise of a right of audience when none has been conferred (1990 Act, s70(1) and (6)).

McKenzie friends

63. Although Mr Alexander did not purport to act as a Mckenzie friend, it is worth mentioning some important principles governing Mckenzie friends.. The development of this jurisprudence is set out in the judgment of Otton LJ in the Divisional Court in R v Bow County Court ex p Pelling [1999] 1 WLR 1807, 1811B-1813, in a passage approved by the Court of Appeal at p 1826B. Three principles are worth noting from the judgments in this case:

i) A McKenzie friend has no right to act as such: the only right is that of the litigant to have reasonable assistance (see p 1824G.)

ii) A McKenzie friend is not entitled to address the court (see pp l823E,1824G.) If he does so, he becomes an advocate and requires the grant of a right of audience under section 27.

iii) Generally, a litigant in person who wishes to have a McKenzie friend should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require (see pp 1827D and 1823G). However, the court can prevent a McKenzie friend from continuing to act as such where the assistance given is inimical to the efficient administration of justice, for example where the friend is indirectly running the case or using the litigant as a puppet (see pp1823G-1824A, 1824E, 1825D-F).

64. In R v Leicester City Justices ex p Barrow [1991] 2 QB 260 Staughton LJ described the court's power to control the activities of a McKenzie friend in these terms:

"An assistant can be ordered to stay away from the litigant or to leave the court if he is disorderly, just as any member of the public can be removed. If he wastes time unnecessarily, as by prompting the litigant to ask irrelevant questions, or causing delay by long consultations, he should be warned; and if this conduct persists his assistance should be terminated. Courts already have, on occasion, the task of controlling professional advocates and litigants and persons who cause unnecessary delay …"

The right to conduct litigation

65. The question whether a person has a right to conduct litigation is also determined solely in accordance with Part II of the 1990 Act (see 28(1). The grant of the right to conduct litigation is carried out having regard to the same considerations as the grant of the right of audience (see para 54 above). Section 28(2)(c) permits a court to grant an otherwise unqualified person a right to conduct litigation in relation to particular proceedings. Section 28 contains no express provision for the removal of a right to conduct litigation analogous to section 27(4), but in our judgment the power under section 28(2)(c) to grant a person a right to conduct litigation in an individual case must necessarily carry with it an implied power to remove that right if it is being abused. It is a criminal offence and also a contempt of the court concerned to do any act in the purported exercise of a right to conduct litigation when none has been conferred (1990 Act, s 70(1) and (6)).

Section 20(1) of the Solicitors Act 1974

66. For the sake of completeness it is worth referring also to section 20(1) of the Solicitors Act 1974 whose provisions seem to have been overlooked by Mr Alexander. This section provides that:

"No unqualified person shall act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction".

67. The section creates a criminal offence and also a contempt of the court in which the relevant action etc is brought (see s 20(2)). There is no breach and no contempt if the acts in question are carried out pursuant to a right of audience or a right to conduct litigation granted under the 1990 Act (ss 27(10) and 28(6)).
68. Acts which have been held to constitute breaches of section 20(1) of the 1974 Act or its predecessors have included completing a form for the entry of an appearance, getting the litigant to sign it, and lodging it with the court and copying it to the other side (see re Hall (1893) 69 LT(NS) 385, where the respondent was charging a fee for his services); and completing and having signed by the litigant a notice of appearance, a notice to produce documents, a summons and an affidavit, and appearing at chambers hearings before a master and a judge (see Re Berriman [1896] 40 SJ 377). On the other side of the line is paying a court fee for a litigant in person (see In the matter of an application by the Incorporated Law Society [1885] 1 TLR 354); and representing a party at an arbitration (see Piper Double Glazing v DC Contracts [1994] 1 All ER 177, 183j -184b, 186d-h).

Human Rights Act 1998

69. The Court is of course bound to consider whether any order it makes would contravene the rights of any person under the European Convention on Human Rights. Mr Alexander did not make any specific submissions in this regard, but Mr Morgan helpfully drew our attention to various provisions of the Convention we should take into account. For the purposes of this judgment it is necessary only to refer to Articles 6 and 8. So far as Article 6 is concerned, we do not consider that Mr Alexander has any civil rights and obligations in this matter with which the court need be concerned, and in any event we have given him a fair hearing before we considered whether his activities should be restrained. Albert & Le Compte v Belgium [1983] 5 EHRR 533, was a case concerned with the deprivation of a doctor's right to practise medicine. There is a vast difference between the right to earn one's living by practising a profession and Mr. Alexander's activities, for which he has none of the necessary qualifications, particularly when he was at pains to assert that he does not earn any money from them.
70. Article 8 is theoretically engaged, because "private life" has been held to extend to "the right to establish and develop relationships with other human beings" (Niemitz v Germany [1992] 16 EHRR 97, para 29). We have no doubt, however, that it is open to us to restrict Mr Alexander's activities in the way suggested "for the protection of the rights and freedoms of others".
71. The other people whose Convention rights might be affected are those who might want Mr. Alexander to help them in future. The relevant Convention right for them is Article 6(1). However, even the Article 6(2) right in criminal cases to legal representation has been held by the European Court of Human Rights not to preclude reasonable restrictions on the right of an accused to the counsel of his choice: see Croissant v Germany [1992] 16 ECHR 135, para 29. A fortiori this principle applies to Article 6(1) civil cases where the right is weaker (Airey v Ireland [1979] 2 EHRR 305, para 26), and the Strasbourg jurisprudence to which we have referred in paragraph 10(ii) above shows how the court respects the right of national courts to protect their process from abuse.

Conclusion

72. We will now apply the principles set out in this judgment to the facts of the case. It is clear that Mr Alexander was granted a specific right of audience in the Noueiri case by District Judge Dabezies, Keene LJ (twice), Mr Recorder Rayner James (twice) and the Court of Appeal (on 4th July). It also appears that he was granted a specific right of audience by Judge Krikler on 18th January (he had not been present at the earlier hearing before that judge on 5th January). What happened before Hallett J on 15th January is unclear. He was also, most reluctantly, granted specific rights of audience by the Court of Appeal in the Mensah case in the circumstances described in paragraphs 30 and 31 above, and he has enjoyed grants of specific rights of audience by different judges from time to time in the past.
73. There seems to be fairly widespread ignorance of the general guidance given by Lord Woolf MR in D v S (rights of audience) [1997] 1 FLR 724, (see paragraph 61 above), no doubt because his judgment was only reported in the Family Law Reports. Peter Gibson LJ's judgment in Mensah v Islington Council (CAT 1st December 2000: see para 31 above) has gone similarly unreported. Keene LJ said in his judgment in the Noueiri case on 24th April ([2001] EWCA Civ 603 at [6]) that he had allowed Mr Alexander "to speak notionally as a Mckenzie friend" on behalf of Mr Noueiri. In the county court he was described as a "lay representative".
74. It is clear that we must repeat in this judgment the guidance given by Lord Woolf MR in D v S at p 728 C-G:

"[The 1990] Act does give a discretion [to grant advocacy rights]. In my view, it is quite clear from the terms in which the Act as a whole is written that it is giving a discretion which is to be exercised only in exceptional circumstances … [The grant of advocacy rights in specific cases] is the responsibility of the courts who have been given that responsibility by Parliament. Those who have rights of audience are subject to very stringent requirements…. The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as [X] and that would be monstrously inappropriate having regard to the requirements that are place upon those who have normal rights of audience."

Attention must also be paid to what Peter Gibson LJ said in the same context in the Mensah case (see para 31 above).

75. We are satisfied on the evidence that Mr Alexander has not only succeeded in practising advocacy as an unqualified person in the Royal Courts of Justice in a way which Parliament never intended, but that it is overwhelmingly in the public interest that this practice must be stopped. It is clear that the members of this court in the Mensah case regarded him as incompetent. In the Noueiri case he repeatedly took hopeless points and advanced completely futile arguments.
76. In the absence of Mr Mensah we are not disposed to find to the requisite standard of proof that Mr Alexander made a contingency fee agreement of the type suggested in the evidence, but the suggestion that he might have done is another indication of the importance of the courts adopting a tough line with unqualified persons who offer their services as lay advocates in the higher courts without the disciplines entailed by membership of an appropriate professional body.
77. We are also satisfied that the evidence points strongly to the conclusion that in the Noueiri case Mr Alexander conducted litigation without a specific grant of the right to do so. Since he was not charged with any contravention of section 28 of the Courts and Legal Services Act 1990 or section 20(1) of the Solicitors Act 1990, and this is not the appropriate forum for such charges, it is not appropriate to make specific findings in this regard. It is, however, appropriate to conclude that what he did in that case discloses what a menace he represents to the proper administration of justice. Although an appeal to Judge Krikler's order would be a second appeal, with all the difficulties that involves for a would-be appellant, Mr Alexander first went quite wrongly to the High Court and then persisted in a number of completely futile challenges for two and a half months even after Keene LJ had dismissed that application for permission to appeal.
78. From his conduct of this litigation two conclusions are possible. Either he did not understand procedural rules which are now very well understood by competent litigators or he preferred to turn a blind eye to them (or both). In either event it is in the public interest that his activities should be stopped. The rules to which we have referred include the following:

i) That a second appeal from a circuit judge in the county court lies only to the Court of Appeal, and only that court can grant permission to appeal;

ii) That there is a higher threshold test for second appeals;

iii) That the decision of a single lord justice in court on an application for permission to appeal has been final both before and after the introduction of CPR Part 52;

iv) That if a High Court judge correctly refuses to grant permission for a second appeal because she has no jurisdiction, and the Court of Appeal subsequently refuses permission, it is improper to buy further time by filing an Appeal Notice in the Civil Appeal Office challenging the High Court judge's order;

v) That if the Court of Appeal refuses a litigant permission to appeal to the Court of Appeal, then the litigant's remedies in the national courts are exhausted. It is both unnecessary and futile to petition the House of Lords for permission to appeal, because the House of Lords has no jurisdiction to grant such permission.

79. At the hearing before us Mr Alexander appeared to be proud of the fact that he had succeeded in staving off the execution of the warrant of possession for his friend Mr Noueiri by this series of hopeless applications, however much this may have cost the respondents (who were unable to recover possession from a mortgagor with very large mortgage arrears) or delayed the cases of other more deserving litigants. This is another illustration of the dangers to the administration of justice if unqualified persons, who are not subject to any professional discipline, act as Mr Alexander did in this case. The dangers are increased if these lay representatives are bankrupt, so that the courts have no realistic power to order them to pay any costs they have wasted through futilely prolonging the litigation.
80. It was for these reasons that at the end of the hearing we made an order restraining Mr Alexander and any company owned or controlled by him, including the company variously known as Peaceful Warrior Ltd and Anthony Alexander Ltd, from taking any step whatever within the Royal Courts of Justice, whether in the face of any court or otherwise, by acting or purporting to act on behalf of any person other than himself in any legal proceedings or intended or prospective legal proceedings save with the leave of the High Court or the Court of Appeal, such leave to be applied for and dealt with in writing. That order was made on an interim basis pending the delivery of judgment. It will now be made permanent. As we said in court at the end of the hearing, we are making the order to protect the court process of the Royal Courts of Justice.
81. We hope that steps can now be taken to bring the principles set out in this judgment to the attention of everyone who exercises judicial office in the Royal Courts of Justice and every relevant member of court staff, particularly in the Civil Appeals Office and in the Administrative Court office, where unqualified persons have from time to time conducted litigation or provided advocacy services for other litigants in the past. Court staff should be particularly vigilant to ensure that formal documents such as an appellant's notice should be signed either by the appellant himself or by someone, such as a solicitor, who has unquestionably the legal right to conduct litigation on the appellant's behalf.
82. It would also be helpful if the appropriate authorities in the Supreme Court Group and the Civil Appeals Office could set up administrative systems to assist judges to identify those lay representatives who are not simply helping a friend or relation but are holding themselves out to act for others on a regular basis. In this way it will be possible for applications for rights of audience or the right to conduct litigation on specific occasions (pursuant to sections 27(2)(c) and 28(2)(c) of the 1990 Act) to be handled more effectively in future, so that litigants, and particularly vulnerable litigants like Mr Mensah, who need help can be channelled to the RCJ Advice Bureau or the Bar Pro Bono Unit and away from unqualified people who have not received the training and are not subject to the disciplines required by Parliament of those who provide such services.
Order: Order as per judgment; the court makes permanent the order which it made on a temporary basis on 26^th July 2001; application by Mr Alexander for permission to appeal to the House of Lords refused. (Order not part of the approved Judgment)